Search

It’s not often that I find myself disagreeing with two of the FCPA commentators I most respect, Tom Fox and Mike Volkov. It’s even rarer that I find myself disagreeing with Tom and Mike, and agreeing with another commentator who I respect immensely, but disagree with almost always, The FCPA Professor, Mike Koehler.

Tom and Mike Volkov say that the FCPA reform effort is dead. Koehler says it might just be sleeping. Koehler is right. It’s not exactly advanced political analysis to say that what politicians say before November and do after November aren’t always aligned. In Washington, calling something dead doesn’t mean it’s gone.

But take one example—something I’ve written about more than once—the compliance defense. I don’t know if it is dead or not, but it should be.

You can pick your reasons. I agree with Volkov that it will never be used.

But here’s one more reason: how do you write it?

The thing about effective compliance is this, there’s no blueprint. And there’s a reason for that: effective compliance is less about what procedures or policies you have in place, and much more about how seriously you take those policies and procedures. And how do you legislate that?

You can have two companies with the same policies, the same processes. One company has an effective compliance program, and one doesn’t. Because one company believes in compliance, and one doesn’t. How do you structure a compliance defense that rewards the former but not the latter?

Let’s not hide the ball: it’s impossible.

You can’t legislate “take it seriously.”

And that’s the fatal flaw in the compliance defense: by its very nature, it would be a list of requirements, none of which captures the only thing which truly differentiates between companies that should be liable and those which deserve leniency. And by focusing on the appearance of a program rather than the strength of commitment to the program, it would—despite Professor Koehler’s protestations—give credit for paper programs. Because a program can appear strong without being truly strong.